Volume 122 — Michigan Reports

Case by Edson Wetherbee against the Michigan Central Railroad Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>1. Trial — Instructions—Court’s Opinion of Merits.</p> <p>For the trial judge to give an instruction which, standing alone, might be taken as an indication of his opinion of the merits of the controversy, but which, in connection with the testimony and the remainder of the charge, is not calculated to be so understood by the jury, does not warrant a reversal.</p> <p>2. Adverse Possession — Farm—Timber Land — Extent of Occupancy.</p> <p>It is not essential to adverse possession of farm land that the entire farm, including timber lands, be cleared and cultivated, but it is sufficient if it is all held as one farm, and such use is made of the whole as farmers are accustomed to make of land of the character of that in question.</p>

Bill by Fred L. Francis against Phebe L. Francis and others for the specific performance of an agreement for the conveyance of land. From an order overruling her demurrer to the bill, defendant Phebe L. Francis appeals.

<p>Appeal from Muskegon; Russell, J.</p> <p>Petition by Alice A. Hall against M. E. Mann and George F. Brown to set aside a tax deed. From a decree for petitioner, defendants appeal.</p>

Bill by Henriette Berry and another, infants, against Edwin M. Adams and Alexander W. Davis, as administrator with the will annexed of the estate of Hannah Harris, deceased, to establish a trust in property devised to defendant Adams. From a decree dismissing the bill, complainants appeal.

<p>Appeal from Bay; Maxwell, J.</p> <p>Petition by Louis Beck against Maggie Finn for a writ of assistance. From an order dismissing the petition, petitioner appeals.</p>

Case by Jennie M. Starbard, administratrix of the estate of Melvin Starbard, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company, for the alleged negligent killing of her intestate. From a judgment for plaintiff, defendant brings error.

<p>1. Evidence — Letters and Telegrams — Materiality.</p> <p>It is not error to exclude from evidence letters and telegrams which merely tend to prove admitted facts, and do not relate to the vital question in controversy.</p> <p>2. Contracts — Employment oe Baseball Player — AgencyEstoppel to Deny.</p> <p>Where the manager of a professional baseball team referred a player to the captain of the team, with the statement that the captain was his sole manager, and whatever he did “went,” he is bound by a contract for the employment of the player, entered into by the captain on his behalf, whether or not the captain had authority from him to mate it.</p>

James Butler was convicted of larceny from a dwelling as a third offense, and was sentenced to imprisonment in the state prison at Jackson for 20 years.

Petition by Roscoe D. Dix, auditor general, for the sale of lands delinquent for taxes: On objections filed by Egbert H. Patterson. From a decree for petitioner, defendant appeals.

<p>T. Contributory Negligenoe — Former Appeal — Res Judicata.</p> <p>A holding, upon appeal of an action for personal injuries, that the circuit judge was in error in directing a verdict for defendant for the reason stated by him, — that there was no evidence that defendant was negligent, — does not establish plaintiff’s right to go to the jury upon a subsequent trial, wherein she is claimed to have been guilty of contributory negligence, a point not raised on the original appeal.</p> <p>2. Same — Ioy Sidewalk — Knowledge oe Danger.</p> <p>Where plaintiff, instead of taking advantage of paths to and from the street which would enable pedestrians to avoid an icy place in the sidewalk, which plaintiff knew to be dangerous, attempted, though with caution, to walk across the ice, she was guilty of contributory negligence, precluding a recovery for injuries sustained in falling upon the ice.</p>

, presiding. Bill by Charles W. Moore against the Universal Elevator Company, Frank E. and James N. Schoonmaker, William Livingstone, Jr., and others,… Held: the organizers of the company agreed to accept the amount then subscribed, and proceed with the work. On October 11, 1895, the Universal Elevator Company was organized, with $100,000 capital. The corporators, and the number of shares held by them, as shown by the articles of association, were as follows: Name. Shares.

Case by Charles Urtel against the city of Flint for personal injuries. From a judgment for plaintiff, defendant brings error.

Assumpsit by Edgar St. John against the Antrim Iron Company to recover the value of certain wood cut by a third person from plaintiff’s land, and sold to defendant. From a judgment for plaintiff, defendant brings error.

Ejectment by the city of St. Joseph against Henry Seel and others, trustees of the First German Baptist Church of St. Joseph. From a judgment for defendants, plaintiff brings error.

Bill for partition by Melissa Reed, Alice Secor, and Frank Ray against Charles Reed, John Ray, Sarah Wright, and Horace Pierce. From a decree for complainants, defendant Reed appeals. Lucy A. Reed died intestate, possessed of two parcels of real estate. Defendant Reed was her husband, and the complainants and other defendants her brothers and sisters, except defendant Pierce, who is the son of a deceased sister.

<p>1. Landlord and Tenant — Surrender of Lease — Evidence.</p> <p>Where a lessee gave 30 days’ notice of intention to quit, and the-parties then, without waiving any other rights or admitting-any liability, agreed that, if the lessor’s attorney should procure a satisfactory tenant, no claim would be made on the lessee for rent after the commencement of such latter tenant’s term, and at the end of the 30 days the lessee took the key to-the lessor, who told the lessee to leave it with the lessor’s attorney, no intention of the lessor to surrender his rights under the lease by acceptance of the key is shown.</p> <p>2. Same — Parol Agreement for Lease — Statute of Frauds.</p> <p>The tenancy is not at will, but from year to year, or at least for a year, -where entry was under a parol agreement for a lease for three years, at a specified annual rental, payable monthly in advance.</p>

Case by Rudolph E. Kompass and Matthew Stoll, co-partners as Kompass & Stoll, against William Light, for malicious prosecution of a writ of attachment. From a judgment for defendant, plaintiffs bring error.

<p>1. Appeal — Assignments of Error — Waiver—Briefs of Counsel.</p> <p>Assignments of error not mentioned in appellant’s brief will ba treated as waived.</p> <p>2. Same — Form of Brief — Court Rules.</p> <p>The nonobservance of Supreme Court Rule No. 40, prescribing the contents and arrangement of appellant’s brief, is criticised.</p> <p>3. Suits — Abatement and Revival — Formal Order.</p> <p>The fact that an order reviving a suit in the name of plaintiff’s administrator was signed by the attorneys, instead of by the court, is immaterial, where defendant afterwards pleaded the general issue without raising the objection, and, from the showing made, the court would have granted the order as of course.</p> <p>4. Chattel Mortgages — After-Acquired Property.</p> <p>A chattel mortgage securing the payment of a specified sum annually for a number of years, which covers specified chattels, and provides that it shall also cover “all other personal property that may be owned or acquired during such years,’.’ is void, as to subsequent good-faith purchasers gor attaching creditors, so far as it attempts to create a lien upon after-acquired property having no connection with that owned by the mortgagor at the time of the giving of the mortgage.</p>

<p>Error to Ingbam; Person, J.</p> <p>Trover by John F. Saltmarsh against the Chicago & Grand Trunk Railway Company. From a judgment for plaintiff, defendant brings error.</p>

<p>Error to Sanilac; Beach, J.</p> <p>Trover by James G. Gordon against Joseph C. Alexander. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by Dwain Reynolds and William N. Rogers against Edward Levi for breach of a well-drilling- contract. From a judgment for plaintiffs for less than the’ amount claimed, they bring error.

Bill by Charles S. Horner and Edward E. Horner to restrain the city of Eaton Rapids from removing from the streets complainants’ electric-light poles and fixtures. From a decree for complainants, defendant appeals. Reversed. Complainants, in 1888, owned a water-power in the' defendant city, with which they operated a woolen mill. The population of the city was about 2,000.

<p>Exceptions before judgment from Kent; Adsit, J.</p> <p>Walter L. Allen was convicted of illegally practicing dentistry.</p>

<p>1. Husband and Wife — Dower—Contract Purchaser.</p> <p>Under 3 Comp. Laws 1897, § 8918, giving the widow dower in all lands whereof her husband was seised of an estate of inheritance at any time during the marriage, a wife is not dowable in lands held by her husband under contract of purchase, the legal title remaining in the vendor.</p> <p>2. Same.</p> <p>A contract purchaser of land, at whose direction the vendor* conveys the land to a third person as security for money to complete payment of the purchase price, is not seis.ed of a legal title, so as to entitle his wife to dower therein.</p> <p>3. Same — Alienation of Homestead — Signature of Wife.</p> <p>A writing signed by a contract purchaser of land and by his wife, directing the vendor to make the deed to a third person, is effectual to cut off the wife’s homestead rights, under 3 Comp. Laws 1897, § 10363, which provides that a mortgage or “other alienation” of the homestead, to be valid, must bear the signature of the wife.</p> <p>4. Mortgages — Partial Release — Foreclosure.</p> <p>Where a mortgage of a homestead and other property, given to secure the payment of eight notes of equal amount, contains a provision that, on payment of the three notes first maturing, the homestead shall be released, the property other than the homestead is alone liable, in case of payment of such three notes, for the balance of the debt; but, if such notes are not paid, the mortgagee may claim the whole as security, and will not be required to release the homestead in case enough should be realized from a sale of the other property to pay the three notes in question.</p>

<p>Equity Jurisdiction — Mortgages—Revivor—Forged Signature —Foreclosure.</p> <p>Where the owner of two purchase-money mortgages discharged them, and accepted in their stead a new mortgage, which, while it purported to be signed by the mortgagor’s wife, was in fact forged as to her, and such mortgage was foreclosed and the premises bid in by the mortgagee’s administrator in the belief that the wife’s claim of forgery was merely a pretense to secure dower and homestead rights, such administrator is entitled, upon its subsequently appearing that the wife’s claim is true, to maintain a bill in equity to revive the earlier and genuine mortgages, the same as if the fraudulent mort" gage had not been foreclosed. Palmer v. Sharp, 112 Mich. 420, followed.</p>

Petition by Roscoe D. Dix, auditor general, for the sale of lands delinquent for taxes: On objections filed by Frederick Ayer and others. From a decree for petitioner, defendants appeal.

Bill by Lewis A. Hall against John F. Nester and others for an injunction. From an order overruling a demurrer to the bill, defendants appeal.

<p>Tax Sales — Validity of Decree — Failure of Court to Remain in Session.</p> <p>A decree for the sale of land for taxes is void where, on the day-fixed for hearing the auditor general’s petition, the court adjourned to a day six days later, and on that day adjourned to a day four days later, on which day the decree was ren- . dered; the taxpayer being entitled, under section 66 of the tax law (Act No. 206, Pub. Acts 1893), to five court days, after the day fixed for the hearing, in which to ask leave to file objections to the tax.</p>

<p>1. Railroads — Injury at Crossing — Contributory Negligence.</p> <p>Plaintiff stopped his horses 93 feet from a railroad crossing, and looked and listened, but neither saw nor heard an approaching train. He did not look again, but told his 15-year-old daughter to keep watch, and she appeared to him to be doing so. They were struck by a train which must have been visible to the daughter, had she looked, from any point within 75-feet of the crossing. The statutory signals, it was claimed, were not given. Held, that plaintiff could not recover.</p> <p>2. Same — Late Train.</p> <p>The fact that one approaching a railroad crossing knows that it is not the scheduled hour for any train does not relieve him of the duty to look and listen, he being chargeable with notice that trains often run behind scheduled time.</p>

<p>Tax Sales — Void Deed — Refunding Purchase Money — Mandamus to Auditor General.</p> <p>Under section 98, snbd. 3, of the tax law of 1893, authorizing the auditor general to refund the purchase price of lands sold for taxes in case the sale was made in contravention of any of the provisions of the act, mandamus will lie to compel the auditor to cancel a deed of state tax land, and to refund the amount paid therefor, where the notice of the original sale on which the deed is based was published in a newspaper printed in the Holland language. Following Visscher v. Ottawa Circuit Judge, 116 Mich. 666; Cockburn v. Auditor General, 120 Mich. 643.</p>

<p>1. Mandamus — Certiorari to Probate Judge — Jurisdiction of Circuit Court.</p> <p>Mandamus will not lie to compel a circuit judge to set aside a judgment reversing on certiorari an order of the probate court, upon the ground that the respondent had no jurisdiction to hear the matter on certiorari, since his action in assuming jurisdiction is reviewable on writ of error.</p> <p>3. Same — Order to Show Cause.</p> <p>The fact that an order to show cause was issued on an application for mandamus is not conclusive that mandamus is the proper remedy.</p>

<p>Intoxicating Liquors — Suppression of Sale — Hotels.</p> <p>A room in a hotel, set apart for the sale of intoxicating liquors at retail, is a saloon, within 1 Comp. Laws 1897, § 2769, subd. 7, authorizing villages to suppress saloons for the sale of liquors.</p>

<p>1. Principal and Agent — Mortgage Foreclosure —Purchase op Principal’s Property by Agent.</p> <p>An agent for the sale of real estate has no right to bid it in for himself at a sale on foreclosure of a mortgage thereon, and, if he does so, equity will require him to account therefor to his principal; and the rule is not altered by the fact that he notified the principal, several days prior to the sale, of his intention to purchase on his own behalf.</p> <p>2. Same — Ratification—Estoppel.</p> <p>The fact that the principal obtained an order for a resale of the premises, and afterwards, being unable to comply with the conditions of the order, or to effect a settlement with the agent, accepted the surplus moneys arising from the sale, and-then waited from three to four years before proceeding against the agent for an accounting, does not amount to a ratification of the sale, or estop the principal from claiming that it inured to his benefit.</p> <p>3. Same — Laches.</p> <p>Nor is he precluded from obtaining relief because of his laches, where his rights in the premises were at all times denied by the agent.</p> <p>4. Same — Accounting—Interest.</p> <p>In accounting for the proceeds of the transaction, however, the agent should be allowed interest on his disbursements.</p>

<p>Railroads — Injury to Employe — Structure Near Track — Assumed Risk.</p> <p>A brakeman who, while riding on the side ladder of a freight car, upon the main track, was injured by coming in contact with a fish-chute erected beside the track, at a point near a station, but outside of the yard where trains were made up, is not precluded from a recovery, as a matter of law, on the ground that he assumed the risk of such injury, where, although the chute was in plain view, he was unacquainted with the surroundings; though the rule would be otherwise had the accident occurred by reason of such a structure abutting upon a side track.</p>

<p>1. Railroads — In jury to Employé — Pleadings and Proofs — Varianoe.</p> <p>Where, in an action against a railroad company for personal injuries, brought by a brakeman who was struck, while climbing the side ladder of a car, by a telegraph pole alleged to have been placed too near the track, the declaration averred that it was necessary for him to ride on the ladder, and the proofs showed only that he was expected so to ride when climbing to the top of a car, there was no such variance as would work a surprise to defendant.</p> <p>2. Same — Post Near Track — Assumed Risk.</p> <p>It cannot be said, as a matter of law, that a railroad brakeman assumed the risk of injury from coming in contact with a telegraph pole negligently placed so near to a side track as to prevent him, when riding on the side ladder of a car, from passing it in safety, where, though it appears that he had walked by the pole and had ridden by it on the tops of cars several times previous to the accident, it further appears that the other poles along the line were not so placed, and it is not shown that he had actual knowledge of the dangerous proximity of the pole in question. Long, J., and Grant, C. J., dissenting. ^</p> <p>3. Same — Right of Action — Release—Consideration.</p> <p>A release given by a brakeman to a railroad company, reciting that he had received certain injuries, and that, to avoid litigation, he, in consideration of re-employment by the company for such time as might be satisfactory to it, released such company from all claims for damages for such injuries, is without consideration, where he was, at the time it was given, in the employ of the company.</p> <p>ON REHEARING.</p> <p>Trial — Misconduct of Counsel — Argument to Jury.</p> <p>Where the trial judge does nothing to check plaintiff’s counsel in the use in his argument of language so intemperate and •improper as to be prejudicial to defendant, it is reversible error.</p>

Case by James Davey against the Hall & Munson Company for personal injuries. From a judgment for . defendant on verdict directed by the court, plaintiff brings error.

<p>Real-Estate Broker — Contract—Evidence.</p> <p>Evidence reviewed, and held not to establish an alleged agree ment by defendant to purchase, through complainant, certain timber lands on which complainant claimed to have an option.</p>

Replevin by Thomas J. Stanton, executor of the last will and testament of Keziah J. Johnson, deceased, against Josiah H. Foster. From a judgment for plaintiff, defendant brings error.

Case made from Bay; Maxwell, J. Assumpsit by the W. & A. McArthur Company, Limited, against the Old Second National Bank of Bay City, to recover the amount of a draft sent to defendant for collection. There was a judgment for plaintiff on verdict directed by the court, and defendant assigns error.

Bill by Charles E. D,arrow against the village of Homer to enjoin the opening of an alley. From a decree dismissing the bill, complainant appeals.

<p>Error to Ionia; Davis, J.</p> <p>Oase by Edward Pahlan against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. Prom a judgment for plaintiff, defendant brings error.</p>

Petition in probate court by James H. Hall, executor _of the lasfwill and testament of Catherine Lamb, deceased, for a construction of the will. Annetta Tillou, one of the ■children of Carlton Ray, deceased, a legatee under the will, -appealed to the circuit court, and from a judgment in her favor the executor brings certiorari. Catherine Lamb died testate.

<p>Mandamus by Maggie Mactavish to compel Allen C. Adsit, circuit judge of Kent county, to dissolve an injunction.</p>

Case by Edward M. Vining against the Detroit, Ypsilanti & Ann Arbor Railway for an assault by defendant’s conductor. From a judgment for plaintiff, defendant brings error.

Case by Samuel J. Brown against Nathan S. Boynton and Albert Gladman for libel. From a judgment for defendant Boynton on demurrer to the declaration, plaintiff brings error.

<p>Error to Wayne; Carpenter, J.</p> <p>Assumpsit by the Improved-Match Company against the Michigan Mutual Fire Insurance Company on a policy of insurance.' From a judgment for plaintiff, defendant brings error.</p>

Bill by Laura L. Scofield against Albert Haire, H. Blinn Tallman, and Freeman H. Gove to set aside certain proceedings of defendants' as fence viewers of the-township of Tecumseh. From the decree rendered,- complainant appeals.

<p>Appeal from Oakland; Smith, J.</p> <p>Bill by Francis P. Lawrence and Phoebe D. Lawrence against George C. Morse and John K. Judd to quiet title. From a decree for complainants, defendants appeal.</p>

<p>Sheep-Killing Dog — Right to Shoot.</p> <p>Where the owner of sheep is informed that a sheep-hilling dog, which has previously worried sheep belonging to him, is within his inclosure, unaccompanied by its owner or other person, he is justified in having his informer shoot the dog, without waiting to see if it is again going to chase his sheep.</p>

<p>1. Lost Deed — Proof of Contents — 'Witnesses—Circumstances Affecting Credibility.</p> <p>The fact that a defendant, in attempting to give the substance of a deed claimed to have been drawn by him and subsequently lost, indicated at first an insufficient description, but corrected his testimony, upon being recalled, so as to denote that the property was properly described, is no ground for disturbing a judgment based upon the existence of the deed; the circumstance, if suspicious, being for the jury to consider.</p> <p>.2. Same.</p> <p>In proving the contents of a lost instrument, it is sufficient to prove its substance.</p> <p>'8. Same — Conclusions of Witness.</p> <p>In proving the contents of a lost deed, witnesses must give the words or the substance of the words; they cannot be asked the “sense ” of the deed.</p> <p>4. Real Property — Possession—Constructive Notice.</p> <p>Actual possession of land is constructive notice to purchasers of a claim thereto.</p>

<p>1. Forgery —Information—Translation from Foreign Language.</p> <p>An information for uttering a forged note which gives a signature thereto in English, while the note was signed in German, should set out that the name was written in German, and give its English equivalent.</p> <p>2. Same — Amendment.</p> <p>Under the statute of amendments (3 Comp. Laws 1897, § 11922), an information for uttering a forged note which sets out the signature in English, when in fact the note was signed in German, of which the translation given is incorrect, may be amended to cure the defect.</p> <p>¡3. Same — Promissory Note — Provision for-Attorney’s Fees.</p> <p>An instrument promising to pay a stated sum, with interest, at a specified date, together with “10 per cent, attorney’s fees for collecting same, to be included in any judgment on tins note, without relief from valuation or appraisement laws, ” while not a promissory note, is subject to forgery at the common law; and an information for uttering such a forged instrument is not invalid because it is misnamed therein as a “ promissory note.”</p> <p>4. Same — Evidence.</p> <p>On a prosecution for uttering a forged agreement to pay money, admitted to have been signed by the purported makers, but claimed by them to have been altered by respondent before being uttered, it was error ,to permit the prosecution to go into the question of the consideration for the-agreement, and to show respondent’s default with respect thereto.</p>

Silas Smith was convicted of statutory rape, and sentenced to imprisonment for 10 years in the state prison at Marquette. Respondent was convicted of the crime of rape, under section 11489, 3 Comp. Laws 1897. Absence of consent to sexual intercourse was not necessary; the girl, Carrie Frank, upon whom it was alleged the crime was committed, being under 16 years of age. She was 14 years and 11 months old at the time. Three errors are assigned: 1.

Clarence Youngs was convicted of an attempt to break and enter a dwelling, and sentenced to imprisonment for’ two years and six months in the state prison at Jackson..

<p>Error to Kent; Grove, J.</p> <p>Assumpsit by Albert Heilman against John Pruyn for breach of warranty on a sale of fruit trees. From a judgment for plaintiff, defendant brings error.</p> <p>Plaintiff purchased of defendant, in 1895, 200 peach trees, and, in 1896, 100 peach trees, under an agreement that they were to be Late Crawfords and Smocks, unless the variety ordered could not be supplied, in which event defendant agreed to furnish- other varieties equally desirable. The trees were furnished, set out, and taken care of. Plaintiff gave evidence tending to show that most of the trees came into bearing in the fall of 1898; that none of them were of the varieties ordered; that there were no Late Crawfords or Smocks, and that they were of an inferior variety, producing small, white peaches, many of them clingstones, and some seedlings; that the fruit was unsalable, and the trees were practically worthless. Plaintiff recovered a verdict and judgment for $300.</p>

Case by Theophilus Michaud against the Grace Harbor Lumber Company for maintaining a defective dock. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Case by Marion Selby against the Detroit Railway and the Detroit Electric Railway for personal injuries. From a judgment for plaintiff, defendants bring error.

Case by William Ferris against the board of education of the city of Detroit for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>1. Partnership — Bill for Accounting — Parties—Administrator of Deceased Partner.</p> <p>The rule that the administrator of a deceased partner is a necessary party to a bill for an accounting applies where the firm is composed of an individual and another firm, one of whose members is deceased.</p> <p>2. Mandamus — Order Overruling Plea in Abatement.</p> <p>Mandamus will lie to compel a circuit judge to vacate an erroneous order overruling a plea in abatement.</p>

<p>1. Constitutional Law — Investing Board with Functions op Appellate Court.</p> <p>A joint resolution of the legislature authorizing the board of state auditors to investigate the claim of innocence of one who was legally convicted of a crime, and who served in prison a part of the sentence imposed upon him, and to allow him, if it find his innocence established, a money compensation, is void as creating, in effect, a court of appeals other than the judicial ones authorized by the Constitution.</p> <p>2. Same — Appropriations by Legislature — Two-Thirds Vote-Joint Resolutions.</p> <p>The two-thirds vote of the legislature, essential under article 4, § 45, of the Constitution, to the validity of any “bill appropriating the public money or property for local or private purposes,” is equally requisite where such an appropriation is attempted by joint resolution.</p> <p>3. Same —Board op State Auditors — Adjusting Claims — Extent op Powers.</p> <p>A petition for compensation by a citizen who served a term in prison for a crime of which, it is alleged, he was innocent, is not a “claim” which the board of state auditors may be authorized to pass upon under article 8, § 4, of the Constitution, creating such board “to examine and adjust all claims against the State;” claims, within the meaning of such provision, embracing only demands based on legal grounds.</p>

Assumpsit by Alice Mason against George E. Howes, trustee of the estate of Clement Wakelee, deceased, for the breach of a covenant to repair leased premises. Prom a judgment for plaintiff, defendant brings error.

Assumpsit by John D. Mouat against Charles Montague to recover a balance claimed to be due upon a contract to install a heating apparatus. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Robert Ricaby against Samuel Gentle upon a justice’s judgment. From a judgment for plaintiff, defendant brings error. This case was tried before the court without a jury, and the following findings made: “ Facts. “A valid judgment was obtained by the plaintiff against the defendant, before Alonzo Plummer, a justice of the peace, on September 7, 1888, for the sum of $290.36 and costs of suit, taxed at $3.20.

Bill by Margarett A. Hull, executrix of the last will and testament of Tyler Hull, deceased, against John Hull, her co-executor, Whitman Hull, and others, for a construction of said will. From the decree rendered, complainant appeals. The purpose of this bill is to obtain a construction of the last will and testament of Tyler Hull, deceased. Mr. Hull left a widow, but no children.

, presiding. Assumpsit by James C. Patterson and others against Thomas J. Kennedy upon a foreign judgment. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

Case by Samuel Hume against the Mason & Hoge Company for personal injuries. From a judgment for plaintiff, defendant brings error. The defendant is a corporation, and was engaged as contractor in digging a canal for the American Lake Superior Power Company at' Sault Ste. Marie. Plaintiff was a common laborer, engaged with others in shoveling the dirt from the sides of the canal onto dump cars. He commenced work on the 12th day of January, 1899, and was injured on- the 14th.

Assumpsit by Nicholas J. Foley against Andrew W. Comstock and another for the breach of a lumber contract. From a judgment for plaintiff, defendants bring error.

Assumpsit by William McPherson, Jr., and Alexander McPherson against John Bristol, impleaded with J. S. Day, upon a promissory note. From a judgment for plaintiffs, defendant brings error.

Case by Martinus S. Britton against the Michigan Central Railroad Company for personal injuries caused by a collision with defendant’s train at a highway crossing. From a judgment for plaintiff, defendant brings error.

Assumpsit by Reid, Murdoch & Company against Jerome Parks for goods sold and delivered. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

and Waite, JJ. Mandamus by Francis A. Blades, comptroller of the -city of Detroit, to compel the board of water commissioners of said city to turn over to him the books, papers, and property of the waterworks system, in accordance with the provisions of Act No. 408, Local Acts 1899. From an •order denying the writ, relator brings certiorari.

Bill by the Preston National Bank of Detroit against Henry R. Leonard, Annie E. Leonard, and Albert L. Stephens in aid of execution. From a decree declaring a lien in favor of defendant Annie E. Leonard, complainant appeals.

<p>1. Divorce — Denial of Marriage — Submission to Jury — Waiver of Right.</p> <p>Defendant in divorce proceedings, who denies the marriage, waives the right to have the issue submitted to a jury, under the provisions of 1 Comp. Laws 1897, § 444, where he makes no request for its submission.</p> <p>2. Common-Law Marriage — Evidence.</p> <p>Where a marriage ceremony is performed between two persons, who afterwards cohabit for eight years, until the woman " discovers that the man, at the time of the ceremony, was undivorced from a former wife, and the parties agree, upon a divorce being obtained, that they will treat the cerfemony as binding, and they continue for three years more to live together, they are properly held, in divorce proceedings, to be husband and wife.</p>

Alice Gr. Lonsdale was convicted of manslaughter, and sentenced to imprisonment in the Detroit house of correction for five years.

<p>Malicious Prosecution — Probable Cause.</p> <p>On. a payment* of rent, a controversy arose between the tenant and defendant, the landlord. The tenant demanded a return of rent he had just paid, or a receipt. Defendant started to leave the premises, when the tenant assaulted him, and plaintiff, coming to the tenant’s assistance, to prevent defendant from getting into the street, pushed him back. Defendant sued them by capias for the assault, and judgment was rendered of no cause of action. Plaintiff then sued for malicious prosecution. Held, that the court should have charged that defendant had probable cause for instituting the suit.</p>

Case by John Journeaux, an infant, by Mary Journeaux, his next friend, against the E. H. Stafford Company, for personal injuries. From a judgment for plaintiff, defendant brings error. The following statement of facts is taken substantially from the defendant’s brief, and is not disputed' by the plaintiff: The injury of which plaintiff complains occurred on the 30th of December, 1898, and during his employment at defendant’s factory.

<p>Error to Houghton; Haire, J., presiding.</p> <p>Assumpsit by Mary E. Shelden against the National Masonic Accident Association on a policy of insurance: Erom a judgment for plaintiff, defendant brings error.</p>

<p>Exceptions before judgment from recorder’s court of Detroit; Chapin, J.</p> <p>Thomas M. Thompson was convicted of manslaughter.</p>

Assumpsit by the Jackson Bridge & Iron Company against the Lancashire Insurance Company on a policy of insurance. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Bill of interpleader by the Prudential Insurance Company of America against Gertrude P. Liersch and Garret Van Winkle, special administrator of the estate of Henry Michelsen, deceased, to determine title to the proceeds of an insurance policy. From a decree for defendant Liersch, defendant Van Winkle appeals.

In the matter of the appeal of the Kent County Savings Bank from an order of the probate court denying a petition for the confirmation of a mortgage executed by Hettie Yedders, as executrix of the last will and testament of Herman A. Yedders, deceased: From an order of confirmation, the executrix brings certiorari.

Case by the Pittsburgh & Conneaut Dock Company against the Detroit Transportation Company for negligently damaging plaintiff’s machinery. Prom a judgment for plaintiff, defendant brings error.

Bill by the people of tbe State of Michigan, on tbe relation of Adolphus A. Ellis, attorney general, against tbe A. P. Cook Company, Limited, to restrain the removal of timber from certain part-paid swamp lands delinquent for taxes. Defendant filed an answer in tbe nature of a cross-bill, denying tbe validity of tbe taxes, and praying that a, patent be issued on tbe payment of such taxes as might be decreed valid. Prom the decree rendered, complainant appeals.

<p>Highways — Proceedings to Establish — Notice,</p> <p>Where land has been occupied and held adversely for 18 years by one claiming to be the owner, it is not necessary, in order to lay out a highway on such land, to serve the statutory notice on others claiming an interest therein.</p>

, presiding. Bill by the First National Bank of Lake Linden and the First National Bank of Calumet against William Con-don, Annie Condon, and others, in aid of execution. From a decree against defendants William and Annie Condon, the latter appeals.

<p>Appeal from Bay; Maxwell, J.</p> <p>Bill by Edwin M. Parsons against the Detroit & Mackinac Railway Company to set aside a deed. Prom a decree for complainant, defendant appeals.</p>

Case by Sarah Nelson against Robert Crawford for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff and her husband reside on a farm about 40 rods from the residence of defendant. One evening defendant, dressed in woman’s clothes, navy-blue bicycle skirt, light waist, sailor hat with flowers on it, and a thin, black face-veil, took a parasol, and went to her house.

, presiding. Bill by the township of Hamtramck against the Rapid Railway Company to enjoin the extension of defendant’s tracks. From a decree dismissing the bill, complainant appeals.

Case by William Y. Chamberlain against the Lake Shore & Michigan Southern Railway Company for the wrongful ejection of plaintiff from defendant’s train. From a judg- ' ment for plaintiff on verdict directed by the court, defendant brings error.

<p>Error to Chippewa; Steere, J.</p> <p>Replevin by Louis Chapelle against William Webster. From a judgment for defendant, plaintiff brings error.</p>

Ejectment by Robert Peters against Clark W. Youngs and others. Prom a judgment for defendants on verdict directed by the court, plaintiff brings error.

Mandamus by the township of Springwells to compel the Detroit, Ypsilanti & Ann Arbor Railway Company to comply with certain'provisions of its franchise. From an order granting the writ in part, relator brings certiorar i

<p>Bill by the city of Kalamazoo to enjoin tbe Kalamazoo Heat, Light & Power Company from occupying the city streets. Prom a decree for complainant, defendant appeals. On motion to strike from the files the case as settled, and to dismiss the appeal.</p>

Mandamus by John W. Dages and William H. Andrews, survivors, etc., to compel Watson Beach, circuit judge of Sanilac county, to vacate an order quashing a writ of replevin.

Assumpsit by the Arbuckle-Ryan Company against the city of Grand Ledge for goods sold and delivered. From a judgment for plaintiff, defendant brings error.

Assumpsit by Henry Fox against the city of Bay City to recover extra compensation under a sewer contract. From a judgment for plaintiff, defendant brings error.

<p>Exceptions before judgment from superior court of Grand Rapids; Newnham, J.</p> <p>Frank D. Warren was convicted of embezzlement</p>

Bill by Reuben Bloomer against Magnus Dau, Mary C. Dau, and Jacob Mann to foreclose a mortgage. From a decree dismissing the bill, complainant appeals. Bill to foreclose a mortgage for $375, dated December 4, 1888, due December 4, 1893, given to one Coles A. Bloomer, the assignor of complainant. Coles A. Bloomer and complainant were brothers, and had.been in partnership.

Bill by Philo A. Buck against Richard Coward, Wallace Monroe, and William Monroe to restrain them from carrying on a certain business in violation of their agreement to refrain therefrom. From a decree dismissing the bill, complainant appeals.

Assumpsit by Ira L. Grinnell and Clayton A. Grinnell, copartners as Grinnell Brothers, against William Anderson, for the value of property alleged to have been converted by defendant. From a judgment for defendant, plaintiffs bring error.

Bill by Amy E. Frisbee against Matthias L. Stewart, Charles D. Stewart, and L. Irving Stewart, copartners as M. L. Stewart & Co., to cancel an assignment of certain notes and mortgages. From a decree dismissing the bill, complainant appeals.

Bill by Sophronia Potter against John P. Martin and others to quiet title. Prom a decree for defendants upon 4heir cross-bill, complainant appeals.

<p>Error to St. Clair; Vance, J.</p> <p>Assumpsit by William L. Fuller against the Locomotive Engineers’ Mutual Life & Accident Insurance Association on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error.</p>

<p>Error to Genesee; Wisner, J.</p> <p>Ejectment by Frank E. Cburch against Evington W., Charles E., and Emily E. Case. From a judgment for defendants on verdict directed by the court, plaintiff brings error.</p>

<p>Error to Chippewa; Steere, J.</p> <p>Case by Nathaniel L. Field against Michael J. Magee for libel. From a judgment for plaintiff, defendant brings error.</p>

<p>Mandamus by Charles E. Roberts to compel George M. Buck, circuit judge of Kalamazoo county, to postpone a foreclosure sale.</p> <p>One Malcolm B. Williams, trustee, filed a bill of foreclosure against the Kalamazoo Heat, Light & Power Company and others in July, 1898. Pour of the defendants were not served with any notice, and did not appear until March 28, 1899. A decree of foreclosure was entered on June 26, 1899, authorizing the circuit'court commissioner to make sale at any time after the 1st day of August, 1899. The relator is interested in the first mortgage, and also in a subsequent mortgage. The interests, involved are large. A suit is now pending in this court involving the validity of the franchise of the defendant company, and is on the docket for the present term. A mechanic’s lien suit is also pending in the court below. The sale was advertised for November 22, 1899. On November 14th relator filed a petition in the circuit court in the cause, alleging the facts, and the injustice in now making a sale, and claiming, also, that the sale would be illegal, for the reason- that a year had not yet elapsed from the time a part of the defendants were served with notice and appeared in the case. The motion was denied, and the relator now asks for the writ of mandamus to issue out of this court to compel the postponement of the sale.</p>

<p>Exceptions before judgment from Wayne; Hosmer, J.</p> <p>Otto L. Luttermoser was convicted of obtaining money by false pretenses.</p>

<p>1. Contracts — Joint Undertaking — Actions—Parties.</p> <p>Where two persons jointly contract with a third, both are necessary parties to an action on the contract against him.</p> <p>2. Same — Breach of Warranty — Principal and Agent.</p> <p>Plaintiff, a married woman, brought suit against defendant for a breach of warranty in the matter of a sale of lands. It appeared that the lands were owned by a third person, in whose behalf defendant signed a land contract running to plaintiff and her husband. Held, that the facts did not necessarily establish a misjoinder or a fatal nonjoinder of parties, as plaintiff’s husband might have been named in the instrument merely as an incident to the contract between his wife and defendant, and the latter, in making the deal, may have bound himself, relying upon his ability to secure ratification by the owner.</p> <p>3. Same — Written Evidence — Modification by Parol.</p> <p>A contract of sale as evidenced by unambiguous writings cannot be modified by parol proof of a warranty.</p> <p>4. Same — Sale of Land — Statute of Frauds — Part Perform anoe.</p> <p>Part performance of a contract for the sale of land, invalid because not in writing, does not make it valid, so as to permit an action at law for its breach.</p> <p>ON REHEARING.</p> <p>Actions — Assumpsit—Fraud and Deceit — Principal and Agent</p> <p>Under 3 Comp. Laws 1897, § 10421, providing that in all cases where, by the fraudulent representations or conduct of any person, an injury is produced for which an action on the case for fraud or deceit may by law be brought, an action of assumpsit shall lie upon an implied promise of the wrongdoer to pay all just damages arising from his conduct, assumpsit may be maintained against an agent who makes fraudulent representations to induce a purchase of his principal’s land.</p>

Joseph; Yaple, J. Bill by the Citizens’ State Bank of Sturgis against the Sturgis Fair Association to foreclose a mortgage. The McGraft Lumber Company and others were made parties as subsequent incumbrancers. From a decree for complainant, defendant lumber company appeals.

Mandamus by Charles F. Kriseler to compel Frank D. Le Valley, president of the village of Vassar, to sign an order for salary claimed to be due relator as deputy marshal. From an order granting the writ, respondent brings certiorari.

<p>1. County Treasurer — Settlement with Supervisors — Action on Official Bond — Argument of Counsel.</p> <p>Where, in an action on a county treasurer’s bond, evidence concerning certain settlements between the treasurer and the board of supervisors was submitted'to the jury, counsel should have been permitted to argue before the jury the question of the weight to be attached to such evidence. .</p> <p>'2. Same — State of Account — Prima Facie Evidence.</p> <p>Such settlements, at least annually,' being provided for by 1 Comp. Laws 1897, § 2479, ar e prima facie evidence of the state of the account, either party, however, being at liberty to show fraud, mistake, or omission.</p> <p>•3. -Same.</p> <p>Evidence that payments had been made to and by the treasurer which were not credited in the settlements affects only the weight to be given to them as prima fqeie evidence of the state of his account.</p>

<p>Appeal from Wayne; Lillibridge, J.</p> <p>Bill by Julian G. Dickinson, surviving trustee under the last will and testament of Davis Henderson, deceased, against Charles D. Henderson and others, for a construetion of said will, and to obtain an order approving certain payments to the widow. From a decree for complainant, defendants appeal.</p>

Assumpsit by Jobn S. Foley against Jobn M. Dwyer and others upon a contract for tbe purchase of real estate. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Assumpsit by Walter L. French against the township of South Arm to recover an amount alleged to be due for improving certain lands for a park and fair grounds. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Error to Wayne; Donovan, J.</p> <p>Assumpsit by Waldo M. Johnson and Richard O. Wheeler, copartners as Johnson & Wheeler, against Theresa L. Costigan, for goods sold and delivered. From a judgment for plaintiffs, defendant brings error.</p>

<p>Mandamus by John R. Moore to compel Roscoe D. Dix, auditor general, to issue a tax deed.</p>

<p>Error to Grand Traverse; Corbett, J.</p> <p>Replevin by George Payn and Julia Payn against Howard E. Gidley and Ella M. Gidley. Prom a judgment for plaintiffs, defendant Ella M. Gidley brings error.</p>

<p>1. Corporations — Lien on Stock — By-Laws.</p> <p>A by-law creating a lien on stock for debts of the stockholder to the corporation is valid, though not binding as against innocent purchasers for value.</p> <p>2. Same — Assignment op Collateral — Forbearance to Sue— Parol Agreement — Bona Fide Purchaser.</p> <p>A creditor who accepts from his debtor a note for the amount due, payable on demand, together with shares of corporate stock assigned as collateral, obtains no more than the shareholder’s equity in the stock, though he agrees by parol to forbear bringing suit for a time in consideration of its receipt -r since, the parol agreement being incompetent to be shown in the event of immediate suit upon the note, there is no sufficient consideration for the assignment.</p>

, presiding. Case by August Renackowsky against the board of water commissioners of the city of Detroit for personal injuries. From a judgment for defendant on demurrer to the declaration, plaintiff brings error.

Mandamus by James Whiteley and others'to compel Eollin H. Person, circuit judge of Ingham county, to allow relators certain costs in an action of ejectment.

■Certiorari to Wayne; Frazer, J. Mandamus by William H. Ashwell to compel Fred C. Bullock to turn over to • relator the books and papers pertaining to the office of secretary of the school board of the village of Highland Park. From an order denying the writ, relator brings certiorari.

Bill by Theresa Balch against James A. Jaycox, George G. Jaycox, and George W. Balch to restrain an execution sale and to reform a deed. From a decree for complainant, defendants Jaycox appeal.

Assumpsit by Almira C. Kooistra against the Rockford Insurance Company of Rockford, Illinois, upon a fire policy. From a judgment for plaintiff, defendant brings error. Plaintiff, the owner of a frame hotel in the village of Conklin, authorized her husband to procure, if possible, insurance upon it. He applied to one Lathrop, an insurance agent.

Bill of review by Freeman B. Dickerson against Edward Corning and Anna Corning, executors of the last will and testament of William Corning, deceased. From a decree for defendants, complainant appeals.

Case by John Leppala, administrator of the estate of Daniel S. Leppala, deceased, against the Cleveland Iron-Mining Company, for negligently causing the death of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff’s decedent was a miner, and at the time of his death had worked in the defendant’s mine two years.

Ejectment by John S. Caple and Andrew J. Hall against John S. Switzer and Elizabeth Switzer. From a judgment for plaintiffs, defendants bring error. One Patrick Egan died intestate, seised of the N. of the N. E. ^ of section 12, town 12 N., of range 4 W., in Gratiot county, leaving a widow and seven children. Due proceedings were had by which the estate was partitioned; a small piece, the subject of this suit, being assigned to the widow as her dower estate.

Bill by David E. Uhl against Hubert Weiden and others to remove a cloud from title, and to correct a description in a deed. From a decree for complainant, defendants appeal.

Bill by James W. Flynn against the Third National Bank of Detroit, Joseph L. Hudson, individually and as receiver of said bank, and others, directors therein, for an accounting. From an order overruling a demurrer to the bill, defendants appeal.

Case by Elizabeth Monje against the city of Grand Rapids for personal injuries. From a judgment for plaintiff, defendant brings error.

<p>Error to Kent; Grove, J.</p> <p>■ Garnishment proceedings by the Merchants’ National Bank of Toledo, Ohio, against William E. Barrett, as garnishee of James A. Panting. From a judgment for plaintiff, defendant brings error.</p> <p>This case was tried before the court without a jury, and the following findings made:</p> <p>“1. December 16,1895, Dennis Bros., of Grand Rapids, Mich., who were then the owners of a certain quantity of lumber situated at Mantón, Mich., sold said lumber to the J. S. Eck Company, of Toledo, Ohio, for $4,315.79. The J. S. Eck Company paid down on the purchase price $2,000. James A. Panting, principal defendant, after-wards purchased the interest of the J. S. Eck Company in the lumber. February 18, 1896, Dennis Bros, made a written contract with defendant Panting, by the terms of which C. S. Bacon & Co., of Grand Rapids, were to sell said lumber on a commission of 50 cents per thousand, and out of the proceeds to pay the remainder of the purchase price due Dennis Bros., and the balance to defendant Panting. March 3, 1896, said contract between Dennis. Bros, and defendant Panting was assigned in writing, indorsed thereon by defendant Panting, to garnishee defendant, William E. Barrett; and at the time the affidavit for the writ of garnishment against said garnishee defendant^ William E. Barrett, was made, and said writ of garnishment was issued and served, namely, the 25th day of March, 1896, said garnishee defendant held said contract by virtue of said assignment.</p> <p>“2. At the time said assignment was made to said garnishee defendant, said principal defendant applied to said garnishee defendant for a loan of $10, and offered said contract as security. Said garnishee defendant paid • said principal defendant $10 at that time, and took said assignment.</p> <p>“3. At the time said assignment was made, said contract was worth the sum of $1,088.64, after the payment of the balance due on the purchase price.</p> <p>“4. At the time said assignment was made, said principal defendant was indebted to the plaintiff in the sum of $942.2? on three promissory notes made by said principal defendant, by the name of James A. Panting & Co., payable to the order of the J. S. Eck Company. Said principal defendant was also indebted to the Mathias Planing-Mill Company, of Dayton, Ohio, to the amount of $2,100 or over.</p> <p>“5. Subsequent to the 25th day of March, 1896, while the said contract was in the possession of the said garnishee defendant, Barrett, the principal defendant agreed with the Mathias Planing-Mill Company to assign, said contract to it, to apply on his indebtedness to said company, with the understanding that, if the money realized from the sale of said lumber was more than sufficient to pay such indebtedness, the surplus should be paid to said principal defendant; and on the 15th of May, 1896, said garnishee defendant assigned said contract to the Mathias Planing-Mill Company, and received therefor $20, — being the $10 which he had loaned to said principal defendant, and $10 which he had expended for attorney’s fees on account of this suit.</p> <p>“6. The Mathias Planing-Mill Company realized from the sale of said lumber, after paying the balance of the purchase price due Dennis Bros., and all expenses of the sale and handling, the sum of $1,088.64, which the said Mathias Planing-Mill Company credited to the said Panting upon its claim against him of $2,100 and over, in pursuance of its agreement between it and the said Panting.</p> <p>“7. James A. Panting did business under the name of James A. Panting & Co. He had no partner. The firm of William E. Barrett & Co. consisted of William E. Barrett alone.</p> <p>“8. Said garnishee defendant was not a bona fide purchaser of said contract for value,' but, at the time said writ of garnishment was sued out and served, held said contract as security for a loan of 110, which was subject to payment, and which has since been paid; and he is therefore liable to the plaintiff, as garnishee defendant, for the value of said contract, namely, the sum of $1,088.64.”</p> <p>Exceptions are taken to the finding of facts. If the finding of facts is erroneous, the finding of law must fall.</p>

<p>Divorce — Appeal—Evidence.</p> <p>A decree of divorce, based on conflicting testimony taken in open court, was affirmed.</p>

<p>Error to Ogemaw; Sharpe, J.</p> <p>Assumpsit by Milbert E. Price and Willard E. Main, copartners as the Equitable Manufacturing Company, against William B. Marthen, for goods sold and delivered. Erom a judgment for defendant, plaintiffs bring error.</p> <p>■ Plaintiffs were partners, doing business under the firm name of the Equitable Manufacturing Company. Their business was the manufacture and sale of musical instruments known as the “American Musical Automatons.” Their place of business was at Iowa City, Iowa. The sale was made through an agent. The contract was in writing, signed by both parties, and was executed in duplicate, —one sent by the agent to the company, and the other delivered to, and retained by, the defendant. The body of the contract was printed. The price was $135. The instrument was put in operation by dropping a nickel in the slot. The contract was forwarded to the plaintiffs. The instrument shipped was received and placed in defendant’s saloon, but, as he claimed, failed to work. He thereupon notified the plaintiffs by letter, and subsequently xeshipped the instrument to them. ’ He refused payment, and plaintiffs brought this suit in assumpsit to recover the purchase price. Attached to the plea of the general issue was a notice that the contract was obtained by fraud and false representations; that defendant was drunk and intoxicated, and in no condition to know what he was doing; that he did not know the contents of the contract, and did not read it; and that the machine was not as represented.</p>

<p>Deeds — Erroneous Description — Reformation — Subsequent Purchasers.</p> <p>Where a mortgagor’s vendor owned only the N. W. £ of the S. W. £ and the S. E. £ of the S. W. £ of. a section of land, but his deed to the mortgagor described the land as the N. W, £ and the S. E. £ of the S. W. £ of such section, and the mortgage, and a quitclaim deed thereafter given by the mortgagor to the mortgagee, contained the same description (the mortgagor having only taken possession of the two 40-acre tracts which his grantor in fact owned, and not having claimed title to any other lands, and the mortgage further stating that the description contained 80 acres), the mortgagor’s grantor was entitled to have his deed reformed so as to describe correctly the land intended to be conveyed, and to have the last grantee enjoined from maintaining an action against him for breach of covenant, based on the failure of title to the N. W. £ of the section.</p>

Assumpsit by Harriet A. Shayler against Eddison Giddins and Andrew A. Garner on a promissory note. From a judgment for plaintiff, defendant Garner brings error. John H. Patterson and Samuel J. Patterson, for appellee, cited, in addition to the cases discussed in Olmstead, v. Latimer, 158 N. Y. 313, referred to in the opinion, the following cases: Place v, Mcllvain, 38 N. Y. 96 (97 Am. Dec. 777); Dyar v. Shenkberg, 93 Iowa, 154; Eaton v Whitmore, 3 Kan.

Bill by Hilton E. Piper against Henry W. Piper to restrain the cutting and removal of certain crops. From a decree for complainant, defendant appeals.

Assumpsit by Áddison C. Collins against Thomas Gordon, Jr., upon an agreement to pay the accumulated interest on a mortgage. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

<p>1. Criminal Law — Embezzlement — Absconding Defendant — Proof'of Demand.</p> <p>Omission, to prove a demand for money alleged to have been embezzled is not fatal where the accused absconded after receiving the money, and admitted that the money had been lost on the races.</p> <p>2. Same.</p> <p>Upon a prosecution for embezzlement, proof that respondent receipted for certain moneys as treasurer of an association, and that the moneys were intended by the depositor to be applied to the purchase of stock therein, sufficiently shows that the moneys belonged to the association.</p> <p>3. Same — Corporation De Paoto.</p> <p>Where an attempt was made by an association to organize a corporation under a state law, and articles of association were prepared, and the incorporators assumed to do business as a corporation, the association became a corporation de facto, within 3 Comp. Laws 1897, § 11591, punishing embezzle, ment from an “incorporated company.”</p> <p>4. Same.</p> <p>Upon a prosecution for embezzlement from a corporation, it is sufficient to show that the property embezzled was the property of a corporation defacto.</p>

<p>1. Landlord and Tenant — Action eor Rent — Evidence.</p> <p>In an action for rent, where the amount was in dispute, it was error to admit evidence as to what the tenant of adjoining premises, also owned by plaintiff, paid him for their rental.</p> <p>3. Same — Value—Credibility oe Witnesses.</p> <p>It was proper, however, where defendant alleged, and plaintiff denied, an agreement that he should occupy at a reduced rental, to show, as bearing upon the probabilities of the truthfulness of the parties, that rents in the locality had depreciated during the period of defendant’s occupancy.</p> <p>3. Evidence — Admissibility.</p> <p>It is reversible error for the trial court to allow the introduction of testimony as to matters outside the issue, calculated to prejudice the jury against one of the parties. So held, where certain irrelevant verses, written by plaintiff upon the reverse of a letter to defendant’s attorney, were permitted to be read in evidence.</p>

<p>Municipal Corporations — Peddlers—License Fee — Validity of Ordinance.</p> <p>Under 1 Comp. Laws 1897, § 8107, subd. 11, authorizing cities of the fourth class to regulate by ordinance the licensing of peddlers, but conferring no discretion upon the city officers in the matter of fixing license fees, an ordinance which purports to prohibit the sale from house to house of a certain commodity without a license, but fails to fix the license fee, is invalid.</p>

Assumpsit by Alfred Rice against the Detroit, Ypsilanti & Ann Arbor Railway to recover excess fare paid under protest. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Bill by Stephen H. Clink against George W. Carpenter for an accounting. From a decree for complainant, defendant appeals.

Bill by George Cornett to restrain William H. Cornett from assuming to act as complainant’s guardian, and to set aside the proceedings under which he claimed authority so to act. From a decree dismissing the bill on demurrer, complainant appeals.

Mandamus by Jacob Pipper to compel William L. Carpenter and Robert E. Frazer, circuit judges of Wayne county, to determine, in mandamus proceedings instituted by relator against William Blanck, the title to the office of supervisor of the township of Hamtramck.

<p>Appeals from Justice’s Court — Plea op Title — Jurisdiction.</p> <p>1 Comp. Laws 1897, §§ 782, 789, which provide that a defendant prevailing-in the circuit court in a suit which he caused to be certified from justice’s court upon his notice that the title to land was involved shall not recover his costs if the trial judge shall certify that title did not come in question, but shall in such case pay costs to the plaintiff, contemplate that causes so certified shall be tried in the circuit courtmpon the merits, and it is therefore error for a circuit judge to dismiss such a case for want of jurisdiction upon a finding merely that title is not involved.</p>

Case by Archibald Grant against the board of water commissioners of the city of Detroit for alleged negligence in laying water-pipes. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Trover by George C. Preston against the Marquette County Savings Bank. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Bill by Richard Bowler, Sr., against Richard Bowler, Jr., Margaret Bowler, and Edson L. O’Harrow, to establish a life estate in certain lands. From a decree for complainant, defendants Bowler appeal.

<p>Settlement — Impeachment—Laches .</p> <p>Where G. made a settlement with N., and gave him- a note for the amount due him on the basis that a certain mortgage belonged to N., he cannot, 30 years afterwards, during which time there has been another settlement on the same basis, and N. has died, claim that the mortgage belonged to him, and that he should have had credit therefor on the note.</p>